satisfy this burden.* CSU is entitled to the same degree of state
sovereign immunity as the State of Illinois.

There are two well-established exceptions to the rule of state
sovereign immunity: (1) a state may waive the protections of the
Eleventh Amendment and thereby consent to suit in federal court, or
(2) Congress may use its enforcement powers under the Fourteenth
Amendment to abrogate the states’ Eleventh Amendment immunity.
Kroll v. Bd. of frs., 934 F.2d 904, 907 (7th Cir. 1991). Mr.
Miraki argues that Congress abrogated Eleventh Amendment immunity
to states receiving federal financial] assistance when it enacted 42
U.S.C. § 2000d-7?, which provides that

A State shall not be immune under the Eleventh Amendment of

the Constitution of the United States from suit in Federal

court for a violation of section 504 of the Rehabilitation Act
of 1973, title Ix of the Education Amendments of 1972, the Age

Discrimination Act of 1975, title VI of the Civil Rights Act

of 1964, or the provisions of any other Federal statute

prohibiting discrimination by recipients of Federal financial
assistance.
Technically, Mr. Miraki's section 2000d-7 argument should be

phrased in terms of state waiver of sovereignty, rather than

Congressional abrogation of sovereignty. Section 2000d-7 was

* Further, two of the three cases cited by Mr. Miraki are
distinguishable. One involved a state university that was
originally private, Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir.
1983), and one involved a junior college in Texas, where junior
colleges are created following a local community’s petitioning of
its county school board. Hander v, San Jacinto Junior Coll., 519
F.2d 273, 279 (Sth Cir. 1975). The third case cited by Mr. Miraki
is a district court case finding that the University of Delaware is
not entitled to Eleventh Amendment immunity. Gordenstein v. Univ.
of Del., 381 F. Supp. 718, 721 (D. Del. 1974).

4



IV. Failure to State a Claim

CSU next argues that Mr, Miraki’s Title VII claims should be
dismissed for failure to state a claim upon which relief can be
granted, CSU argues that Mr, Miraki has alleged neither direct
evidence of discrimination/retaliation nor the elements of a prima
facie case of discrimination/retaliation under the MeDonnell
Douglas burden-shifting approach. Federal courts require only
notice pleading, however. Scott v. City of Chicago, 195 F.3d 950,
951 (7th Cir. 1999). Notice pleading requires only that plaintiff
set out in his complaint “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a) (2); Scott, 195 F.3d at 951. The complaint need only contain
enough to allow the defendant to understand the gravamen of the
complaint, and it need not spell out every element of a legal
theory to provide notice. Scott, 195 F.3d at 951-52. Here, even
assuming that Mr. Miraki cannot recover for any conduct prior to
October 27, 2000, he alleges that following the spring 2001
semester, he was taken off the reemployment roster because of his
national origin and religion, and has not been offered employment
since. (Compl. 9 13.) This is sufficient to state a claim for
employment discrimination under the generous federal notice
pleading standards.

Mr, Miraki does fail, however, to state a claim for

retaliation. Mr. Miraki alleges that “[i]n complaining of CSsU’s



>,

argument misreads section 2000d-7. The catch-all provision of
section 2000d-7 does not apply to immunity against suits for
violation of al] federal statutes prohibiting discrimination (such
as section 1981). It applies to immunity against suits for
violation of only those federal statutes that specifically prohibit
discrimination by recipients of federal financial assistance.
While the statutes enumerated in section 2000d-7 all refer to
discrimination specifically by recipients of federal financial
assistance, 29 U.S.C. § 794; 20 U.S.C. § 1681; 42 U.S.C. § 6101; 42
U.S.C, § 2000d, section 1981 does not. Section 1981 does not fall
within the catch-all provision of section 2000d-7, and thus,
regardless of whether CSU receives federal financial assistance,
section 2000d-7 does not establish that it has waived its Eleventh
Amendment immunity to suits under section 1981. Cf. Kaimowitz v.
Bd. of Trs., 951 F.2d 765, 768 (7th Cir. 1992) (42 U.S.c. § 1983
does not fall within catch-all provision of section 2000d-7 because
it does not specifically prohibit discrimination by recipients of
federal financial assistance). As Mr. Miraki fails to present any
other basis for Illinois’ waiver or Congressional abrogation of
sovereign immunity against his section 1981 claim, it is dismissed
as barred by the Eleventh Amendment,
II. Punitive Damages
CSU argues that Mr. Miraki may not sue it for punitive damages

under Title VII. 42 U.S.C. § 198la(a) (1) provides that “[i]n an



enacted in response to the Supreme Court’s decision in Atascadero
State Hospital v. Scanlon, 473 U.S. 234 (1985), which held that
“mere receipt of federal funds” does not establish waiver of
sovereign immunity, and that if Congress wishes to condition
receipt of federal funds on waiver of immunity, it must make that
intent “clear.” Id. at 246-47. Section 2000d-7 establishes “an
unambiguous waiver of the States’ Eleventh Amendment immunity.”
Lane v. Pena, 518 U.S. 187, 200 (1996). Thus, section 2000d-7 is
not a Congressional abrogation of state sovereign immunity in cases
to which section 2000d-7 applies; it instead establishes that
states who receive federal funds have waived their sovereign
immunity in those cases.‘

Regardless, Mr. Miraki argues that the catch-all provision of
section 2000d-7 allows suit against a state that receives federal

money and discriminates in violation of section 1981. This

4 This distinction may seem overly technical, but I think it

is an important one to recognize given the Supreme Court’s recent
string of Eleventh Amendment cases. See Nanda, 303 F.3d at 823-27
(reviewing City of Boerne v. Flores, 521 U.S. 507 (1997); Fla.
Prepaid Postsecondary Educ. Expense Bd, v. Coll. Savings Bank, 527
U.S. 627 (1999); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000);
and Bd. of frs. v. Garrett, 531 U.S. 356 (2001)). Those cases
express a narrow view of what sorts of Congressional legislation
may be enacted pursuant to the enforcement authority of the
Fourteenth Amendment. Although there appears to be no case
directly addressing whether section 2000d-7 was enacted pursuant to
the enforcement provision of the Fourteenth Amendment, it is
unlikely that such a basis for its enactment would be upheld. As
a result, that section could not abrogate state sovereign immunity.
That section is, however, a valid exercise of Congressional
spending power, which allows spending to be conditioned on state
waiver of immunity.



III. 300 Day Limitations Period

CSU next argues that Mr. Miraki is barred from recovering for
any alleged acts of discrimination or retaliation that occurred
more than 300 days prior to his filing of charges with the EEOC.
See, generally, E.E.O.C, v. Harvey L. Walner & Assocs., 91 F.3d
963, 970 (7th Cir. 1996) (because Illinois is a “deferral state,”
the limitations period of 42 U.S.C. § 2000e-S(e) requires filing an
EEOC charge within 300 days of the alleged discrimination). Mr.
Miraki alleges that he filed charges with the EEOC on August 22,
2001. (Compl. @ 14.) According to CSU’s calculations, 300 days
prior to August 22, 2001 is October 27, 2000. Mr. Miraki alleges
that after the spring 2001 semester, he was taken off the
reemployment roster because of his national origin and religion.
{Compl. 7113.) Mr. Miraki has thus alleged discriminatory conduct
falling within the 300 day limitations period and his Title VII
claims cannot be dismissed on that ground. If CSU is seeking
dismissal on the ground that Mr. Miraki’'s claims are barred by the
statutory limitations period, it is denied. If CSU is simply
requesting a declaration that Mr. Miraki may not recover for
conduct occurring prior to October 27, 2000, that request is also
denied. So long as Mr. Miraki has alleged at least one act of
discrimination within the limitations period, which he has, issues
of which conduct specifically may serve as the basis for recovery

are best delayed until the summary judgment or trial stage,



Minus Order Form (06877)

United States District Court, Northern District of Ilinois

if Assiy 7 3 ake Sitti ii cr
vin Maina fudge Elaine B. Bucklo “tha Asleed Suge
CASE NUMBER 02 € 8409 DATE 4/29/2003
CASE Miraki vs. Chicago State University
TITLE

[In the following box (a) indicate the party tiling the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:
DOCKET ENTRY:
ql) Qo Filed motion of [ use listing in “Motion” box above.]
Q) oO Brief in support of motion due
@G) oO Answer brief to motion duc. . Reply to answer brief due___.
(4) Oo Ruling/Hearing on setfor_ at
(5) go Status hcaring[held/continued to] [sct for/re-set for]on_ set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—sesetfor at.
(7) o Trial[set for/re-set for]on__ at,
(gs) im [Bench/Jury trial] [Hearing] held/continued to at,
(9) ir ‘This case is dismissed [with/without} prejudice and without costs[by/agrcement/pursuant to]
ClFRCP4(m) Ol Local Rute 41.1 OOPRCP4I(a(1) OO PRCP41(a)(2).
(10) | (Other docket entry] Enter Memorandum opinion and Order granting in part and denying in part

defendant’s motion to dismiss, The motion is granted as to plaintiff's section 1981 claim ( count II) and Title VIT
retaliation claim ( count III), and denied as to plaintiff's Title VII discrimination claim ( count I).Defendant’s
motion to dismiss plaintiff’ s claims for punitive damages is also granted. Discovery is ordered closed on 8/29/03.
Any dispositive motion will be due by 9/30/03. If no motion is filed, pretrial order will be due by that time; and
response to any motions in limine by 10/14/03. Pretrial conterence set for 10/28/03 at 4:00 p.m. Trial set for
11/3/03 at 9:30 a.m.

(1) of [For further detail see order (on reverse side offatfached tothe original minute order.}

No notices required, advised in open court.

2

No notices required

umber af notices,

PR 3.9 2003

dare dggketed

oY | Notices mailed by judge's staff.

>

Natified counsel by telephone,

Docketing to mail notices.

Mail AQ 450 form,

Copy to judge/magistrate judge,

courtroom
MPI deputy's
initials

Date/time-received in

central Clerk's Office mailing deputy initials



claim (count I). Defendant’s motion to dismiss plaintiff's claims

for punitive damages is also GRANTED

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: April) , 2003

11



discriminatory practices to the EEOC ... [he] engaged in conduct
protected by Title VII, after which he received retaliation as a
direct and proximate result.” (Compl. @ 23.) Mr. Miraki’s only
allegation of a complaint to the EEOC, however, is his allegation
that he filed EEOC charges on August 22, 2001. (Compl. 414.) All
of the adverse employment actions that he alleges occurred prior to
that date. (Compl. 9% 12-13.) Thus, he fails to adequately allege
that CSU acted in retaliation to his EEOC complaint. Mr. Miraki
asserts in his brief that he had filed an earlier EEOC complaint in
September 2000. (Pl.’s Resp. to Def,’s Mot. to Dismiss at 12.)
This assertion is not found in his complaint, however, and my
consideration of a motion to dismiss is limited to the pleadings.
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.
1984) (“It is axiomatic that the complaint may not be amended by
the briefs in opposition to a motion to dismiss.”). As Mr.
Miraki’s complaint fails to state a claim for retaliation, that
claim is dismissed.
V. Conclusion

Defendant’s motion to dismiss is GranTzD as to plaintiff's

section 1981 claim (count II) and Title VII retaliation claim

{count III), and Denrgp as to plaintiff£’s Title VII discrimination

10



action brought ... under [Title VII] ... and provided that the
complaining party cannot recover under section 1981 of this title,
the complaining party may recover compensatory and punitive damages
as allowed in subsection (b).” Subsection (b) provides that in
various circumstances “[(a] complaining party may recover punitive
damages under this section against a respondent (other than a
government, government agency or political subdivision) .” 42
U.S.C. § 1981(b) (1) {emphasis added). CSU argues that the
parenthetical exception for governmental bodies in section
1981(b) (1) means that Mr. Miraki may not recover punitive damages
from it. See, e.g., Baker v, Runyon, 114 F.3d 668 (7th Cir. 1997)
(reversing award of Title VII punitive damages against United
States Post Office). Mr. Miraki argues that CSU is not a
government “agency,” and therefore does not fall anywhere within
the exception. In support of his contention, Mr. Miraki cites a
district court case from Nevada, Cleveland v. Runyon, 972 F. Supp.
1326 (D. Nev. 1997). In that case, the court noted that “the plain
language of [section 198la(b)] exempts ‘agencies,’ not ‘entities,'”
Id. at 1328. Even if this distinction is relevant and non-agency
entities are not exempt from punitive damages, CSU is a government
agency. 30 ILCS 5/1-7 (defining “State agencies” as including

universities). Mr. Miraki’s claim for punitive damages is

dismissed.



the State of Illinois, “[T]he Eleventh Amendment protects the
state and its agencies; it does not shield political subdivisions.”
Kashani v. Purdue Univ., 813 F.2d 843, #45 (7th Cir. 1987). The
question in a case such as this is whether CSU “is more like a
county or city than it is like an arm of the State.” Jd. Numerous
Seventh Circuit cases have found state universities to be entitled
to Bleventh Amendment protection. See, @.g., id, (Purdue
University); Osteen v. Henley, 13 F.3d 221, 223-24 (7th Cir. 1993)
(Northern Illinois University); Davidson v. Bd. of Governors, 920
F.2d 441, 442 (7th Cir. 1990) (Western Illinois University); Cannon
v. Univ. of Health Sciences, 710 F.2d 351, 356 (7th Cir. 1983)
(University of Illinois and Southern Illinois University).
Although courts reexamine the issue with regard te the facts of
each case, “it would be an unusual state university that would not
receive immunity.” Kashani, 813 F.2d at 845. Mr. Miraki bears the
burden of persuading me that CSU is somehow different from these
other universities, even at this early stage in the litigation,
See Osteen, 13 F.2d at 223-24 (affirming dismissal on Eleventh
Amendment grounds of suit against Northern Illinois University
because plaintiff failed to distinguish circuit precedent that
other state universities received immunity). Mr. Miraki’s
citations to cases in other circuits finding various state

universities not entitled to Eleventh Amendment immunity does not



workload for the spring 2001 semester, but has not been offered any
further employment since. He alleges that during his employment
with CSU, the chair of his department made discriminatory comments
about him, and that CSU's employment decisions were discriminatory.
In August 2001, Mr. Miraki filed charges with the EEOC and the
Tilinois Department of Human Rights. In September 2002, he
received a right to sue letter from the EEOC. In November 2002,
Mr, Miraki filed suit in this court. CSU now makes several
arguments for dismissal.
I. Eleventh Amendment

CSU argues that plaintiff’s section 1981 claim is barred by
the Eleventh Amendment.’ The Eleventh Amendment states that “The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States.” U.S. Const. amend. XI.”

Mr. Miraki argues that, though a state university, CSU is not

entitled to the protection of the umbrella of immunity enjoyed by

7 CSU does not argue that Mr, Miraki’s Title VII claims are

barred by the Eleventh Amendment. See generally Nanda v. Bd. of
Trs., 303 F.3d 817, 831 (7th Cir. 2002) (Eleventh Amendment does
not bar Title VII disparate treatment claims against states).

2 Although the text of the Eleventh Amendment refers only to
suits against states brought “by Citizens of another State, or by
Citizens or Subjects of any Foreign State,” U.S, Const. amend. XI,
the Amendment provides immunity for states from suits brought
against it by its own citizens. Nanda, 303 F.3d at 822 n.3 (citing
Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) and
Edelman v. Jordan, 415 U.S. 651 (1974)).

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION QNCKETED

APR 3 0 2003

MOHAMMED MIRAKI,
Plaintiff,
v. No. 02 C 8409

CHICAGO STATE UNIVERSITY,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Mohammed Miraki filed a three count complaint
against defendant Chicago State University (“CSU”), alleging
national origin and religious discrimination in violation of Title
VII, 42 U.S.C. § 2000e et seq., and Section 1981, 42 U.S.C. § 1981,
and retaliatory discharge in violation of Title VII. CSU now moves
to dismiss the complaint. I grant the motion in part and deny the
motion in part.

On a motion to dismiss, I take all allegations in the
complaint as true. Wilczynski v. Lumbermans Mut. Cas. Co., 93 F.3d
397, 401 (7th Cir. 1996). The facts as alleged by Mr. Miraki are
as follows. Mr. Miraki is a United States citizen of Afghan
descent, and a follower of Islam. Mr. Miraki was employed as a
non-tenured lecturer at CSU, beginning in the fall of 1998, In the
spring of 2000, he applied for a tenured faculty position. In

August 2000, he was denied a tenured position and was not recalled

to teach for the fall 2000 semester. Mr. Miraki was given a half